August 1, 2017

Plan A and Plan B If Donald Trump Fires Special Counsel Bob Mueller

Dan Froomkin

Russia Probe

Congress needs to be prepared to take immediate action if President Trump fires special counsel Robert Mueller, former White House ethics chief Norm Eisen said Monday.

Citing Capitol Hill response to Richard Nixon's 1973 "Saturday Night Massacre" firing of the Watergate special counsel as a model, Eisen said members of the House and Senate would need to quickly launch hearings into potential obstruction of justice, take steps to assure that Mueller's records and staff are preserved --  and demand that Trump appoint a new special counsel right away to continue his work.

"We're talking about a whole other level of firestorm here," Eisen said, "and I do believe the president's hand would be forced by the abandonment of support from his own Congress and the risk of a full-blown investigation being powered forward in Congress."

Call that Plan A.

But if Republican leaders even under those circumstances refuse to act against their own president – or if Trump refuses to appoint someone new -- Plan B is for the American public to make itself heard.

"We need to be ready for that," Eisen said. "I anticipate that we'll see, as we did at the very beginning of the administration, huge public outcry."

Eisen's comments came during an American Constitution Society webinar in which he and Ohio State University law professor Peter Shane explored the various ways Trump might take Mueller off the playing field, and the possible legal and political ramifications.

Neither predicted Trump would force Mueller out – "I don't think Trump himself knows yet," Eisen said – but considering his record of violating presidential norms, they both said it was a distinct possibility.

"Trying to keep track of all the rule-of-law concerns raised by this administration is like a game of Constitutional whack-a-mole," Shane said.

The rule of law is not just about following bright-line rules and heeding explicit court orders, Shane said. It is more about a culture of deference to the integrity of the legal order.

President Trump's hostility toward Mueller's investigation into Russian interference in the election and possible collusion with the Trump campaign "has to be seen as a relentless attack on those sorts of practices," Shane said.

Firing Mueller is made more complicated for Trump by the special counsel rules set forth in 28 C.F.R. § 600.7, a federal regulation that says that "The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General."

And according to that regulation, even the attorney general needs to have a legitimate reason. "The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies."

Attorney General Jeff Sessions, of course, has famously recused himself from all special counsel-related matters, leaving Deputy Attorney General Rod Rosenstein as acting attorney general for that matter.

So Trump would technically have to order Rosenstein to fire Mueller. If Rosenstein refused and resigned, then the duty would pass to Associate Attorney General Rachel Brand. And if she resigned, the duty would traditionally continue to pass down through the top ranks of the Justice Department – except none of those positions has yet been filled with a Senate-confirmed nominee.

According to an Executive Order Trump signed in February (then oddly revoked and reissued in March), the line of succession would then jump to Dana Boente. In addition to being the unconfirmed, acting chief of the department's national security section, Boente remains the U.S. Attorney for the Eastern District of Virginia, a job for which he won Senate confirmation in 2015. (That is also how Boente ended up briefly serving as acting attorney general in February, after Trump fired Sally Yates, the Obama appointee who was acting attorney general at the time.)

But all that is assuming that Trump chooses to heed that rule – which is notably part of the Code of Federal Regulations, not a legislative mandate in the U.S. Code  -- in the first place.

Eisen and Shane noted that Trump could potentially decide to fire Mueller directly – all by himself – asserting a particularly extreme view of what some hawkish constitutional lawyers call the "Unitary Executive Theory," and refusing to allow his executive power to be bound by, in this case, a mere executive-branch regulation.

("I can't emphasize strongly enough that I think this theory is wrong," Shane said.)

But that could easily lead to a messy federal court battle, making the more likely scenario a reprise of the "Saturday Night Massacre," where the top two officials in Nixon's Justice Department resigned rather than fire Watergate special prosecutor Archibald Cox. The solicitor general at the time – Robert Bork – became acting attorney general, and followed Nixon's orders.

Neither Rosenstein nor Brand is seen as likely to be willing to go along with Mueller's discharge, Shane said.

But how much will today's Congress follow the Watergate script at that point?

As Eisen noted, Cox's firing led to Nixon coming under such immediate and enormous congressional and public pressure that a mere 11 days later Nixon himself named a new Watergate special prosecutor: Leon Jaworski. And Jaworski took up where Cox had left off.

Eisen said that if Trump ousts Mueller, "I think you'll see bipartisan outcry for appointment of a new special counsel."

But that is Plan A.

And if you think the Republican Congress still won't act against Trump, or you can't imagine that Trump – after calling Mueller's investigation a "witch hunt" – would turn around and appoint someone new to lead it under any circumstances whatsoever – then the situation will call for Plan B.

Executive Power, Separation of Powers and Federalism